STATE OF FLORIDA, APPELLANT,
v.
MENDY RAE HENDERSON, APPELLEE
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The State appealed a trial court's downward departure sentence for Mendy Rae Henderson's fourth DUI conviction. The court held that Henderson's offense could not qualify as an 'isolated incident' under Florida sentencing guidelines merely because it was her first felony DUI, given her three prior DUI convictions within a two-year period. The court reversed and remanded for imposition of a guideline sentence.
The court held that § 921.0026(j) cannot be interpreted to mean that an offense is 'isolated' merely because the defendant has never before committed that exact type of offense, regardless of prior criminal history. The court also held that remorse cannot be found when a defendant continues to deny responsibility for the offense. The trial court erred in granting the downward departure.
[1] A downward departure sentence is not warranted under a statute permitting departure for an "isolated incident" when the defendant has a history of similar offenses commit…
[2] A defendant's denial of responsibility for an offense at a sentencing hearing is inconsistent with a finding of remorse required for a downward departure.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Section 921.0026(j) cannot, and should not, be read to mean that as long as the defendant has never committed the exact offense for which he or she is currently being sentenced, the offense can be considered isolated regardless of the defendant's criminal history.”
Establishes the proper interpretation of 'isolated incident' under sentencing guidelines—it cannot depend solely on whether the offense is the defendant's first of that type.
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Join FLexlaw to unlock all legal intelligenceHenderson entered an open plea to driving under the influence (her fourth DUI), resisting an officer with violence, and driving while her license was …
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The State appeals the trial court’s imposition of a downward departure sentence for Mendy Rae Henderson, arguing that the trial court erred in finding that Henderson’s fourth DUI offense was an isolated incident. This is the second time that the legality of Henderson’s sentence has come before this Court. Once again, we reverse.
In 2012, Henderson entered an open plea to driving under the influence (her fourth DUI), resisting an officer with violence, and driving while her license was suspended or revoked. Originally, the trial court departed from the sentencing guidelines on the basis that Henderson was in need of rehabilitation for substance abuse, and that she was needed at home to be “financially, physically, mentally and emotionally supportive of her minor son,” who himself was at risk due to his mother’s addiction.1 On appeal, this Court reversed and remanded for resentencing, finding that the nonstatutory mitigators used by the trial court “failed to comport with legislative sentencing policies as interpreted by Florida courts.” State v. Henderson, 108 So.3d 1137, 1141 (Fla. 5th DCA 2013).
At resentencing, Henderson again argued for a downward departure, this time based upon section 921.0026(j), Florida Statutes. That section provides for a downward departure when “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” § 921.0026(j), Fla. Stat. (2013). Henderson argued that her offense was isolated because it was her first felony DUI. The trial court agreed, finding that Henderson was remorseful, that the offense was unsophisticated, and that it was an isolated incident. The trial court reasoned: “Henderson has never before had a felony DUI, so that meets the legal test. And ... it had been some ten months or more before she had had a previous DUI.” The trial court then re-imposed the identical sentence that was originally imposed.
Florida’s sentencing scheme requires the trial court to impose a sentence that comports with the guidelines unless a *51valid basis for departure is established. See § 921.0026, Fla. Stat. Section 921.0026(j) cannot, and should not, be read to mean that as long as the defendant has never committed the exact offense for which he or she is currently being sentenced, the offense can be considered isolated regardless of the defendant’s criminal history. For example, a person being sentenced for sexual assault who has numerous prior robbery convictions cannot be eligible for a downward departure simply because he has never previously been convicted of a sexual assault.
In this case, Henderson had three prior DUI convictions. The second, third, and fourth DUIs were committed within a two-year period. The fourth DUI occurred just ten months after the third DUI, while Henderson was still on probation. The fact that she was able to avoid being arrested for ten months does not render her last DUI isolated. See State v. Stephenson, 973 So.2d 1259, 1263-64 (Fla. 5th DCA 2008) (holding that incident was not isolated where defendant had a “substantial criminal record prior to the current offense”); State v. Bell, 854 So.2d 686, 691 (Fla. 5th DCA 2003) (noting that multiple driving while license suspended convictions prove that crime was not isolated).
Additionally, as to the resisting arrest with violence charge, the record does not support the trial court’s finding that Henderson was remorseful. As the trial court acknowledged, Henderson denied resisting the officer with violence at the sentencing hearing. See State v. Ayers, 901 So.2d 942, 945 (Fla. 2d DCA 2005) (holding that the record did not support element of remorse where defendant continued to deny responsibility for the offense); State v. Chestnut, 718 So.2d 312, 313 (Fla. 5th DCA 1998) (“We are certain that [the defendant’s] denial of doing ‘what [he] was accused of is not the kind of remorse contemplated by the legislature.”).
In sum, the trial court erred in granting Henderson a downward departure. Accordingly, we are compelled to reverse with instructions to the trial court to impose a sentence within the statutory guidelines.
REVERSED and REMANDED for imposition of a guideline sentence.
SAWAYA and WALLIS, JJ., concur.
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State v. Raymundo Centeno, Jr., 192 So. 3d 705 (Fla. 5th DCA 2016)…ated manner. Moreover, although Centeno entered a plea, he refused to admit he took the victim’s yard trimmer.2 Under these circumstances, the act of entering a plea and saying “I’m sorry” is not enough to establish remorse. See State v. Henderson, 152 So. 3d 49, 51 (Fla. 5th DCA 2014) (finding defendant failed to show remorse where he pled guilty but then denied committing the crime at sentencing); Ayers, 901 So. 2d at 945 (holding that the record did not support element of remorse where defendant continue…
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State v. Hollinger, 253 So. 3d 1207 (Fla. 5th DCA 2018)…17, 122 (Fla. 5th DCA 2017) (finding no competent, substantial evidence to support remorsefulness where defendant declined to accept responsibility for crimes by either denying his involvement or blaming his actions on a friend); State v. Henderson, 152 So. 3d 49, 51 (Fla. 5th DCA 2014) (explaining that evidence did not establish remorse where defendant denied committing the crime); State v. Ayers, 901 So. 2d 942, 945 (Fla. 2d DCA 2005) (finding defendant failed to establish remorse where he continued to den…
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State v. Guerra, 328 So. 3d 1002 (Fla. 4th DCA 2021)…edible.” It goes without saying that “[i]t is impossible for a defendant who refuses to accept responsibility for an offense to show remorse for that offense.” State v. Ayers, 901 So. 2d 942, 945 (Fla. 2d DCA 2005); see also State v. Henderson, 152 So. 3d 49, 51 (Fla. 5th DCA 2014) (finding that denying a crime at the sentencing hearing is inconsistent with a finding of remorse). The defendant relies on one statement where he said he was sorry to the victim, but this statement was surrounded by…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Ayers, 901 So. 2d 942 (Fla. 2d DCA 2005)
- State v. Stephenson, 973 So. 2d 1259 (Fla. 5th DCA 2008)
- State v. Dreama Adea Bell, 854 So. 2d 686 (Fla. 5th DCA 2003)
- State v. Chestnut, 718 So. 2d 312 (Fla. 5th DCA 1998)
- State v. Mendy Rae Henderson, 108 So. 3d 1137 (Fla. 5th DCA 2013)